Five years ago this summer, the U.S. Supreme Court in Zelman v.
Simmons-Harris eliminated one potential barrier to educational opportunity by
upholding Cleveland’s school voucher program against a legal challenge under the
U.S. Constitution’s Establishment Clause. Does that mean the door to school
choice is now open in states like Michigan? Unfortunately not, because each
state has its own constitution that may (and in Michigan’s case does) create
local limits on school choice. Understanding the situation in Michigan requires
a bit more background.

Seeking a "silver bullet" victory that would have effectively ended school
choice across the nation in a single stroke, the National Education Association
and other special interest groups attacked Cleveland’s educational choice
program for including religious schools among the wide array of educational
options available to parents. Allowing parents to choose religious schools, they
argued, amounted to an indirect attempt to aid religion in violation of the
federal Establishment Clause.

Of course, that argument is hard to reconcile with the fact that the federal
government routinely pays for prekindergarteners to receive child care at
religious schools and day-care centers, as well as for college students to
attend religious colleges like Notre Dame, Georgetown, and Yeshiva University
using Pell Grants and the GI Bill. And the Court rejected the argument, finding
Cleveland’s voucher program to be one of "true private choice" designed to aid
families, not religion.

Having lost at the U.S. Supreme Court, the NEA and its anti-choice allies did
not give up. Instead, they committed themselves to fighting the battle for
educational status quo state by state, dredging up whatever state constitutional
provisions could be pressed into service both to discourage the future enactment
of choice programs and challenge any existing ones in court. That’s going to be
a tall order: From eight programs in seven states when the Zelman case came down
in 2002, we have gone to 17 programs in 10 states. Georgia is the latest state
to join the voucher movement, offering state-funded scholarships to parents of
children with disabilities. Arizona has a similar program that also includes
foster children, as well as two different tax-credit-funded scholarship programs
for other students.

Moreover, mounting evidence shows the benefits of school choice — not only
for students receiving vouchers, but also for students who remain in public
schools that, confronted for the first time with choice-driven competition,
improve their overall performance in response. Other studies show beneficial
effects on graduation rates (again, for students who take the vouchers and those
who do not), racial integration, and substantial cost savings. No study has
shown that any voucher program has ever harmed either voucher recipients or
public schools. The only empirical question about vouchers today is whether
their impact so far is best characterized as modestly beneficial or incredibly
beneficial.

So where does that leave Michigan?

Unfortunately, Michigan’s state constitution is among the most hostile in the
country to school choice. Unlike virtually every other state, in which at least
some form of publicly-funded school choice is possible, Michigan’s constitution
specifically provides that no public money may ever be paid "to aid or maintain"
any private school at the K-12 level. It states that no "payment, credit, tax
benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of
public monies or property" may be provided "directly or indirectly, to support
the attendance of any student or employment of any person at any such nonpublic
school."

Realistically, the prospects for school choice in Michigan, absent
constitutional amendment, are dim. A 2000 effort to amend the state constitution
to permit school vouchers went down hard, and it is unclear what it would take
to credibly mount a fresh attempt. One promising reform would be education tax
credits, which have been a more popular school-choice policy than vouchers. In a
2002 survey conducted by the EPIC-MRA polling firm for the Mackinac Center, 67
percent of the respondents said they would support education tax credits.

The increasingly irrefutable evidence that school choice programs actually
improve public schools while simultaneously providing a lifeline to thousands of
children stuck in failing public schools may help to promote vital reform. The
best evidence of the necessity of a school-choice policy must be the steadily
increasing demand for school choice among the people who need it most: young,
minority, urban parents, among whom polls show upwards of 80 percent support for
school vouchers. Or maybe it will be the simple realization that those who now
stand in the doors of our public schools to keep children trapped inside are
just as morally culpable as those who stood in schoolhouse doors 50 years ago to
keep children trapped outside.

Clark Neily is a senior
attorney with the Institute for Justice, Arlington, Va.